Category Archives: Workers’ Comp Q & A

Consider These Car Accident Tips to Avoid Missteps

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No one ever intentionally plans to get in a car accident or get hurt at work. But unfortunately bad things sometimes happen in life. And a person’s response to those situations can sometimes affect what happens from a legal perspective. Also remember that if you travel as part of your job, or if traveling is your job, like in the case of truck drivers, vehicle accidents are often covered under workers’ compensation. Here are some recommended tips to avoid potential legal pitfalls later.

What to do when you’ve been in a car accident:

  1. Call the police (or 911 if necessary).
  2. Exchange information with the other driver (name, contact info, driver’s license number, license plate, auto insurance).
  3. Obtain witnesses: Get names and contact info for any witnesses even if the police have already spoken to that person. If possible, obtain written statements from willing witnesses.
  4. Gather evidence: Take pictures or videos of the accident scene, the damage to all vehicles, and any noticeable injuries.
  5. Write notes of the date, time, location, weather, how the accident happened, and any other details that you can remember (speed, traffic signals, turn signals, headlights, brake lights, cell phone usage, etc.).
  6. Go to your doctor: make sure to tell your doctor how you were injured, and be sure to discuss all injuries, even ones that seem insignificant at that time.
  7. Contact your insurance company, and report the accident. Your auto insurance will likely pay for at least some of your medical bills.
  8. Do not give a recorded statement without contacting a lawyer.

You should talk to a lawyer when you’ve been in a car accident IF:

  1. You don’t know what kind of compensation/money you are entitled to
  2. The insurance company is asking you for a recorded statement
  3. The insurance company denies your claim
  4. There is a question of which driver is at fault
  5. The police report is incomplete or inaccurate
  6. The other driver does not have insurance or does not have enough insurance coverage
  7. You have unpaid medical bills
  8. You have permanent disability or constant pain
  9. There are complicated legal or medical issues
  10. You have missed more than a few days of work

Do your best to drive defensively, and safe travels.

Who Calls The Shots, Your Employer-Selected Doctor Or The Insurance Company?

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Insurance companies sometimes tell doctors that they will not pay for procedures that the doctor says are medically appropriate.

Today’s post comes from guest author Nathan Reckman from Paul McAndrew Law Firm in Iowa. I think this blog post is especially useful because it shows how workers’ compensation program details vary from state to state. It turns out that the nuances are very important. Todd Bennett and Roger Moore, partners in Rehm, Bennett & Moore, are admitted to the bar in Iowa.

In Iowa, employers have the right to control an injured worker’s medical care. This means that if you are injured at work, your employer gets to send you to a doctor of their choosing. The doctors chosen by the employer are called “authorized treating physicians.” In theory, after an employer chooses their authorized treating physician, they are required to pay for any care that doctor believes is necessary to treat the work injury. In practice, the employer and their workers’ compensation insurance company often try to interfere with the care the injured worker is entitled to by refusing to pay for procedures or tests recommended by their handpicked doctor.

Typically, when an authorized doctor suggests an expensive course of care (like surgery) the first thing the doctor will do is check with the insurance company to make sure the surgery is going to be paid for. Instead of immediately scheduling the needed surgery, the doctor will wait until the insurance carrier agrees to pay for the procedure. Doctors do this so they don’t have to worry about how they are going to be paid. Asking for this unneeded authorization from the insurance company means the insurance company now has a say in determining what individual procedures are proper for the care of the work injury.

We often see injured workers whose injury was initially accepted by the employer until the doctor requests authorization for an expensive surgery. When faced with the additional cost of surgery, the insurance carrier denies the work injury hoping the injured worker will either forego surgery or try to pay for the surgery through other means, such as their personal health insurance.

This situation may also arise when the authorized doctor recommends expensive diagnostic procedures, like CT scans, or refers the injured worker to a specialist, for example a psychiatrist for depression related to the work injury.

To make sure your rights are protected, it’s often helpful to have an experienced workers’ compensation attorney on your side if you’re facing a situation where your employer is trying to interfere with the decisions of their handpicked doctor. Injured workers should get the care that their doctor, not an insurance company, determines is medically appropriate.

What Are My Rights Regarding Commissions in Nebraska?

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imgresI recently received an inquiry from a potential client about how commissions work in regards to employment law in Nebraska.

My reply included some of the following details:

The Nebraska law that deals with the payment of commissions when a worker is no longer employed, Nebraska Revised Statute 48-1230.01, can be found here. You are entitled to your commission payments at the next regular payday following whenever your commission is collected. Per the law, you are also entitled to an accounting of what commissions you have generated and which ones are still outstanding.

This is a fairly straightforward statute. While there is no way to guarantee you will be paid commissions by your employer, this statute tells you what your rights are. I would suggest you ask for an accounting of your unpaid commissions in writing. If your employer fails to give you an accounting of your unpaid commissions, they are risking criminal and civil penalties, which are covered under Nebraska Revised Statute 48-1231 and Nebraska Revised Statute 48-1232.

State laws and individual situations vary, so if you have specific questions about your circumstances, our office can help you make sure you speak with an attorney who is familiar with your area and can best assist under the circumstances.

Average Weekly Wage Decides Workers’ Comp Benefits

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Workers’ Compensation benefits are partially determined by your average weekly wage.

One of the factors that determines how much you receive in workers’ compensation benefits is the calculation of your average weekly wage. In Nebraska, in most cases, average weekly wage is calculated by:

  1. going back 26 weeks
  2. multiplying your hours times your straight time pay
  3. excluding abnormally low-hours weeks (generally those of 32 hours a week or less)
  4. taking the total amount of wages earned in non-abnormally low work weeks divided by the number of non-abnormal weeks.

Multiply your average weekly wage by two-thirds, and that is what you should receive for your weekly workers’ compensation benefit. That amount is exempt from federal and state taxes in Nebraska, so your work comp check should oftentimes be close to your actual take-home pay, unless you are working a lot of overtime.

There are all sorts of exceptions to the basic way to calculate average weekly wage. If you receive a fixed amount for room and board as part of your contract, then that amount is included in addition to your wages. If you just started at your employer, then a court might look at what other workers were making in the six months before your injury to determine your average weekly wage. An employer might also try to reduce your workers’ compensation benefits if they can deem you a “seasonal employee.” School-district employees will often be paid workers’ compensation benefits based off a weekly average of their annual pay.

There are two types of workers’ compensation benefits: temporary and permanent. Employees who work less than 40 hours a week will be paid permanent disability benefits based on a 40-hour week. But please keep in mind that all of these rules vary from state to state.

How Apportionment Relates to a New Workers’ Compensation Claim

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multiple injuriesCan I get workers’ compensation benefits for an injury even though I had a past workers’ compensation claim?

The simple answer is yes. In nearly all instances, you would be entitled to full benefits for your new injury regardless of whether you have already experience a workers’ compensation injury in the past.

Apportionment:

“Apportion” or “Apportionment” means that your employer is allowed to assign disability to a previous workers’ compensation injury to the same body part, which reduces the money benefits for your current injury. However, only under certain situations is your employer allowed to “apportion” benefits from your current injury to a past injury.

Specifically, in order to “apportion” your current injury to a previous injury (thereby reducing money benefits) there needs to have been a loss-of-earning-capacity evaluation for your previous injury. Often, this is not present. Even in rare situations where there was a previous loss-of-earning-capacity evaluation attributable to a previous workers’ compensation injury, your employer must still show Continue reading

Can I Collect Social Security, A Pension AND Workers’ Comp?

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Today’s post comes from guest author Matthew Funk from Pasternack Tilker Ziegler Walsh Stanton & Romano. Different benefits like SSD, a pension, and workers’ compensation can be combined, but care needs to be taken when approaching that situation. Working with a lawyer who knows the details of how these potential benefits interact means peace of mind that a client will benefit from available resources without potential troubles.

QUESTION: IF I AM GETTING SOCIAL SECURITY DISABILITY (SSD) AS WELL AS A PENSION DOES THAT MEAN I CANNOT GET WORKERS’ COMPENSATION AS WELL?

ANSWER: YOU CAN GET STILL GET WORKERS’ COMPENSATION WHEN YOU ARE RECEIVING A PENSION AND SSD.

At 55, Joe was a walking museum of every accident he had ever had in his 30 years of working the job. That last accident put him out of work for almost two years. Luckily, he filed all the paperwork, submitted all the forms, crossed all his ‘Ts’ and received Social Security Disability (SSD).

But after three decades of hard work, Joe had had enough and so he started the paperwork to retire. But he was worried. He had planned on applying for Workers’ Compensation, but he wasn’t sure he’d could since he was already on SSD and about to receive his pension. What should he do?

File, Joe! File!! The combination of Workers’ Compensation, Social Security Disability and a pension is called the Trifecta, a Triple Crown of benefits, so to speak. Continue reading

Workers’ Comp Q&A: Does going back to work ruin my case?

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Today’s post comes from New York colleague Todd Jones of Pasternack Tilker Ziegler Walsh Stanton & Romano. Going back to work during a workers’ compensation claim can get complicated, so be sure to include your attorney in the discussion. This post includes a useful checklist for returning to work and reminds folks to listen to their bodies, too.

QUESTION: DOES GOING BACK TO WORK RUIN MY CASE?

ANSWER: Not at all!

This question comes up a lot in Workers’ Compensation cases. When someone is injured they have to balance their personal and professional obligations while including their injury as a new variable.

This is completely understandable. Oftentimes people want to try to get back to work but are not sure if their body will hold up. This uncertainty can cast a shadow over everything a person has to consider when they have a work injury.

First and foremost you should speak to your doctor and find out what you are physically capable of. While your injury may be improving, you may not be able to return at 100%.

If your doctor clears you to return to work Continue reading

There IS a Statute of Limitations on Workers’ Compensation Claims

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The term “statute of limitations” means that there is a certain amount of time to bring a legal claim. If that time runs out, the claim can be barred from ever being heard, no matter how legitimate the claim may be. All workers’ compensation claims in any state have some sort of time limitation in which to file a lawsuit. The primary reason for the statute of limitations is to provide some stability so that cases are filed in a timely manner. The longer a case takes before going to trial, the more difficulty a party is likely to experience in terms of locating witnesses, documents, or electronic records.

In Nebraska, the statute of limitations is two years.

In Nebraska, the statute of limitations is two years. More specifically, you must file a lawsuit (or Petition) in the Nebraska Workers Compensation Court within two years of the date of the accident or the date of the last benefit paid (disability indemnity payments, or medical bills payments), whichever is later.

Of course, if any benefits have been paid, that will be the later date. However, when trying to calculate this date, you need to look at the date a check is issued concerning the last disability payment or medical payment made. You cannot assume that simply because you went to your workers’ compensation doctor that the bill was paid by the workers’ compensation carrier.

In Iowa, the time limit in which to file a workers’ compensation claim is two-fold as well. If no weekly disability payments have been made to the injured worker, a worker must file within two years of the date of injury.

In Iowa, the time limit in which to file a workers’ compensation claim is two-fold as well. If no weekly disability payments have been made to the injured worker, a worker must file within two years of the date of injury. If weekly disability benefits have been paid to an injured worker, then the time limit in which to file a claim is three years from the date of the last payment. Unlike Nebraska, medical payments do not count as weekly benefits.

In either state, when it comes to the statute of limitations, it’s better to be safe than sorry. If it’s getting even remotely close to the appropriate time limitation from the date of your injury, you would be best served by contacting a lawyer to determine whether a lawsuit needs to be filed immediately to prevent your claim from being barred forever. Once you miss this deadline, your case is over, no matter how legitimate your injury is.